Transcript

2.
Introduction The Obama administration continues to usthe administrative agency systemaggressively in the area of employmentlaw – overall expansion of employee rights Many developments this year which are acontinuation of what we’ve seen the lastfew years We will just touch on them2

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EEOC – National Stats EEOC has been very active in bringing itsown lawsuits against companies EEOC reported near record number ofdiscrimination charges in 2012 $364 million paid by employers in EEOCcases Important to make sure you have goodpractices and address issues3

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NLRB – Social Media NLRB has made clear that employees areentitled to engage in “concerted activity”including on social media Social media policies cannot prohibit“concerted activity” Other workplace policies cannot prohibit“concerted activity”18

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NLRB – Problems with Decisions On January 4, 2012, President Obamamad three recess appointments (3 of 5) Various employers have challengedrecess appointments as unconstitutional DC District Court held appointmentsunconstitutional (only one court)19

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NLRB – Problems with Decisions Court found appointments void, so legallythey were never part of NLRB Every decision since then is subject toattack Supreme Court will likely resolve20

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Social Media Hot topic in social media – askingemployees or applicants for social media(Facebook) passwords Not a good idea! Find out more than you want –discrimination, ADA, GINA May violate federal laws regarding storedcommunications21

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Social Media Co-workers saw postings and complained Talked to employee and she claimed she usedwheelchairs at airport Reminded that airports have cameras and of FBpostings She admitted she lied about wheelchairs Court used “honest belief” doctrine which allowsemployer which honestly believes based onfacts that employee abused leave23

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EEOC – Background Checks Criminal convictions may be relevant if– Job related – specific and tailored– Direct threat to public safety or property– Business necessity – individualized assessment Fact of an arrest does not establish criminalconduct– May consider conduct underlying arrest if conductmakes individual unfit for position This is not going away26

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Gender Identity/Transgender April 2012 Macy v. Holder – EEOC case inwhich employee transitioning from male tofemale claimed she was denied a job by theATF because of her transgender status EEOC found Title VII intentionaldiscrimination because transgender status isby definition discrimination based on sex Trend continues with some limitations27

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Gender Identity/Transgender 11th Circuit has supported the notion thatdiscrimination based on “gender identity”is Title VII discrimination because it isbased on stereotypes about what it meansto be a man or woman Many states and local governments havepassed employment laws protecting gayand transgender employees28

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Gender Identity/Transgender Some push back 5th Circuit held in July of 2012 that a maleemployee (who was not gay) did not have TitleVII case even though he was called “faggot” and“princess” and simulated sex with him – EEOCv. Boh Brothers Construction Court found no discrimination because no proofthat plaintiff did not conform to stereotypes29

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Gender Identity/Transgender Some push back 8th Circuit rejected a transgender discriminationclaim in September 2012 – Hunter v. United ParcelService Court accepted the growing body of precedent thatdiscriminating based on applicant’s gender non-conformity violates Title VII Court held that there was no evidence that companyknew applicant was transgendered even thoughapplicant had female name but dressed as male30

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EEOC – Transgender Employees Supreme Court has accepted cert. andhas heard argument in two gay marriagecases This area will continue to change31

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IRS – Wage & Hour Enforcement Criteria– Consistent treatment and 1099s for 3 years– No current audit regarding classification– Must be in compliance with prior audit Temporary expansion modifies eligibility topermit taxpayers who have not issued all1099s for three years to participate If accepted, pay 10% of tax liability Deadline – June 30, 201338

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DOL – Unpaid Interns Under attack – April 2010 Fact Sheet Test (not as strict for non profits)– Similar to educational training– For the benefit of intern– Does not displace workers– Employer gets no immediate advantage andmay be impeded by intern– Intern not entitled to job at end– Intern understands no wages39

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DOL – Unpaid Interns What can happen? Recently a class action was filed in federalcourt in NY by a former unpaid intern forElite Model Agency seeking $50 million inunpaid wages, overtime, and benefits40

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Federal Labor Standards Act March 2013, 11th Circuit found that anemployee who was not authorized to workin United States could still recover unpaidwages under FLSA Consistent with trend in federal courts Minimum wage and overtime41

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Department of Homeland Security As of March 8, 2013, employers mustbegin using new I-9 form issued byDepartment of Homeland Security This form has 3-year shelf life as it will notexpire until March 2016 New instructions for the I-9 have beenpublished to help employers http://www.uscis.gov/files/form/i-9.pdf42

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OSHA OSHA very targeted and busy Has issued a record number of significantenforcement cases including largest fine inhistory Strengthened protections for whistleblowers Launched new inspection programs Focusing on high hazard, temporary workers,and hospitals and healthcare44

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OSHA – Workplace Violence In 2012, OSHA updated the HazardCommunication Standard New label elements, new safety datasheet format, and training requirementsthat must be completed by December 1,2013 Go to website45

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Courts: Handbooks January 2013, Utah Court of Appeals heldthat pro se plaintiff had enough evidence tomove forward on his claim of breach ofcontract – Tomlinson v. NCR– At will statements in handbook were not solidand did not clearly apply to all employees– Handbooks included written warnings andperformance plan– Claim that manual created an impliedcontract47

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Courts: FMLA Employee has to show that– He engaged in protected activity – in thiscase notified employer of intent to takeFMLA leave– He was subject to adverse action –terminated– Causal connection between notificationand termination49

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Courts: Non-Solicitation January – Prepaid Legal v. Cahill (E.D.Okla.) addressed new area of enforcingnon-solicitation agreements by trying tostop social media posts Salesman left and went to competitor He made general posts on FB and Twitterabout his new company – went to many ofhis previous sales force50

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Courts: ADA September 2012, EEOC v. United Airlines(7th Circuit)– Held employer must reassign disabledemployee to vacant position if employee isqualified and would not impose unduehardship on employer– Even if other employees are more qualified51